The Inconvenient Indian (30 page)

In the 1980s some of the large wood-product companies began pressing the British Columbia government for access to timber stands largely untouched by logging activities. In 1983, MacMillan Bloedel received permits to cut old-growth cedar on Meares Island in Clayoquot Sound on the west coast of Vancouver Island. The reaction was immediate. By the time logging crews arrived on the island in November of 1984, they were met by a blockade of Natives and non-Natives. “This land is our garden,” Tla-o-qui-aht Chief Moses Martin told the loggers. “If you put down your chain-saws, you are welcome ashore, but not one tree will be cut here.”

MacMillan Bloedel and the Tla-o-qui-aht took the matter to court, and, in what must have been a surprise to the corporation, the judiciary sided with Native people, issuing an injunction that suspended logging activities on Meares Island until such time as Native land claims in the area were settled.

The following year, 1985, across the water on Haida Gwaii, logging interests turned their attention to Lyell Island. This was Haida territory, and the Haida immediately threw up a blockade to stop any cutting. The Haida were tired of having their territory destroyed, and they were joined by environmentalists who shared
the tribe’s concern about preserving old-growth forests, animal habitats, and watersheds. People who worked in the timber industry were furious at what they saw as an assault on their livelihood, and, predictably, tempers flared. In November of that year, the police moved in and began arresting protestors, many of whom were Haida elders who had insisted on being on the front lines.

Generally protests of this sort can be tense, sometimes even lethal events. But the confrontations over Lyell Island were—from time to time—unexpectedly civil and periodically humorous. The Haida shared their food with the police and the loggers. Guujaaw, one of the Haida leaders, told a reporter that the police ate with the Haida because the Haida had the better food. The RCMP, in the spirit of community, arranged for satellite service so that everyone could watch the B.C. Lions beat the Hamilton Tiger Cats 37–24 in the Grey Cup. At one point, a truce was struck in which loggers agreed not to cut any trees while the Haida left Lyell Island to attend a funeral.

For the next twenty-one months, the Haida, the loggers, the environmentalists, and the police moved back and forth among each other, arguing jobs, culture, land claims, environmentalism, and the law, sometimes heatedly, sometimes calmly and with respect. And then, in July of 1987, Ottawa, British Columbia, and the Haida signed a memorandum of agreement that created Gwaii Haanas National Park Reserve and Haida Heritage Site.

In May of 1996, my family and I, along with Greg Staats (Mohawk), a fine-art photographer from Toronto, began a month-long tour of remote Native villages along the west coast of British Columbia, where Greg and I offered workshops in photography and writing. At the end of our time on the coast, I packed Helen
and two of our three children, Benjamin and Elizabeth, into a very small seaplane and flew down to Rose Harbour in the middle of Gwaii Haanas. We took a Zodiac from there across the water to Sgaan Gwaii to see the Haida village of Ninstints and the stand of old totem poles on the island.

I think that many non-Natives find it hard to understand why Native people are willing to fight so hard to protect their land. In the case of Gwaii Haanas, all you have to do is stand at the ocean’s edge with the cedars at your back and the sky on your shoulders, and you will know.

The place is magic. No doubt about it. Now, I know that not everyone is going to understand the affinity that the Haida have for their land. Which is why the creation of the Gwaii Haanas National Park Reserve and Haida Heritage Site was such an important event. The agreement protects an astonishing landscape and allows North America the time to mature and to come to an appreciation of what the oft-abused term “sacred” truly means.

Okay, the moment’s over. Let’s get back to work.

When Alaska became a state in 1959, one of the contentious issues that followed it into statehood was the matter of Native land claims. The Alaska Statehood Act, which had passed the year before, allowed the territory to help itself to over 100 million acres of “vacant, unappropriated, and unreserved” public land. At the same time, the Act forbade Alaska from selecting lands that were held by Native tribes. As a result, for most of the next decade Native groups and the state spent a great deal of time, effort, and money arguing over who owned what.

Then, in 1966, Alaska Natives came together, formed the Alaska Federation of Natives (AFN), and began an organized and concerted effort for a comprehensive, state-wide, land-claim settlement. In that same year, Stuart Udall, the Secretary of the Interior, announced that he would refuse to approve any of the land selections that Alaska had made until the state first settled Native claims. Three years later, in 1969, Udall made his earlier order permanent, with Public Land Order 4582. Predictably, this did not go over all that well with Alaska’s Governor Walter J. Hickel or the state’s petroleum lobby. Not only did the order stop Alaska’s land selection, it also halted the sale of oil leases and blocked the construction of a much-anticipated 800-mile oil pipeline that was to bring Arctic crude from the Beaufort Sea down to Prince William Sound.

The federal moratorium was a strong incentive to settle the claims, but what put the train on the track was the 1968 discovery of oil at Prudhoe Bay on Alaska’s North Slope. Now, with the scent of money in its nose, and with the oil industry pushing it from behind, the state began the process in earnest.

The land-claim issue in Alaska was massive. Natives claimed most of the state. Alaska claimed most of the state. This should have been a recipe for political disaster. Instead, in three short years, a time frame unheard of in such negotiations, the Alaska Native Claims Settlement Act (ANSCA) was passed by Congress, approved by the Alaska Federation of Natives, and signed by President Richard Nixon.

ANCSA, in many ways, resembled early treaties, with Aboriginal people giving up claim to large chunks of territory in exchange for smaller portions of guaranteed land. Under the settlement act,
Natives in Alaska received about 44 million acres of land and some $963 million in cash. To put that settlement into perspective, 44 million acres is more land than is currently held in trust for
all
other Indian tribes in the United States. The cash compensation is nearly four times the combined amount that Native people had won from the U.S. Indian Claims Commission over the twenty-five years the commission was in business. On paper, the settlement looked to be a reasonable compromise. A win-win situation. Alaska was able to abrogate all Native claims with one slash of the pen, and Alaska Natives came away with the largest land-and-cash settlement that Aboriginal people had ever negotiated.

Prior to ANCSA, Native land in Alaska was trust land, subject to the control and protection of the U.S. government. But from the start of the negotiations, it was clear that neither Alaska nor Washington was interested in continuing this arrangement. Instead, federal and state authorities insisted that any land that was transferred to Alaska Natives be transferred as fee simple.

This should have set off alarm bells. The conversion of trust land to fee-simple land had been the centrepiece of earlier legislation: the 1887 Allotment Act, and termination in 1953. Both policies had been a disaster for Native people. But for whatever reason, when the Alaska Federation of Natives met in December of 1971 to consider the Alaska Native Claims Settlement Act as passed by Congress, the delegates voted 511 to 56 to support the legislation and to take the land designated in the settlement as fee simple.

Native people have complained for years about the paternalism of the Bureau of Indian Affairs and the extent to which this agency has tried to micro-manage Aboriginal affairs, so I can only suppose that AFN believed that a fee-simple land arrangement
would allow for more control than was possible under a federal trust agreement. Certainly, the lived experience of the tribes in North America would seem to support this conclusion.

But while ANCSA may have contained some elements of allotment and termination, it was neither. Both allotment and termination were blunt weapons that had been used to relieve tribes of their land. Under those two policies, tribal lands were broken into fee-simple pieces, and Native people who had been part of a communal whole suddenly found themselves set adrift as private landowners. Within one generation, much of the land was lost and the people scattered.

One of the major differences between ANCSA and allotment or termination was that the fee-simple land Alaska Natives received in the settlement was protected in a number of ways. Neither the land nor the cash was given to individuals. Both were placed under the control of twelve Native regional corporations (a thirteenth corporation was added later) and over two hundred Native village corporations. Not a trust relationship exactly, but close enough for government work.

In addition to cash and land, Alaska Natives also retained surface and sub-surface rights to the land, all of which promised a much-needed economic base. As a rough and loose rule, sub-surface rights, such as oil, were vested with the regional forprofit corporations, while surface rights, such as timber, were vested with the village corporations, which could be either profit or non-profit in nature.

In quick order, tribal and village councils were whisked through the corporate looking glass, emerging on the other side as boards of directors, while individual Alaska Natives, who had
been members of the Tlingit, Haida, Tsimshian, Aleut, Yupik Nations, et al., were suddenly, presto change-o, shareholders in the Sealaska Corporation or Doyon Limited or the Arctic Slope Regional Corporation or the Bering Straits Native Corporation or Cook Inlet Region Inc. or one of the seven other ANCSA-created corporations.

When I was in Juneau in 2011, a Tlingit friend of mine told me that, since the advent of ANCSA and the changes the act has had on traditional Native culture, there is a generation of Tlingit who “no longer know their clan or their house, but they sure know the name of their corporation.”

Corporations. The new reservations.

From a distance, ANCSA looked good. But the devil, as usual, was in the details. What quickly became clear was that Alaska Natives were simply not prepared to move from the heart of the country to the boardroom in one generation. Nor were they ready to take on the financial and legal complexities that attend corporations. ANCSA contained provisions to protect the land from loss and seizure for the first twenty years, but by the late 1980s, it was clear that if the protections were lifted in 1991 as scheduled, all Native land in Alaska would be exposed and vulnerable.

By the by, this twenty-year protection provision was remarkably similar to the twenty-five-year provision that was supposed to have protected Native land under the policy of allotment. And everyone knows how well that turned out.

To their credit, Native leaders went to work, and, in 1991, Congress passed House Resolution 278 (HR 278), which amended the original 1971 settlement act. While the new amendments dealt with wide-ranging concerns, the two most critical changes
were in the area of corporate stock and protection of the land base. Under the 1971 agreement, stock in the regional corporations was given only to Alaska Natives who were born before 1971 and who met ANCSA criteria for enrolment. Alaska Natives born after 1971 received no stock, though they could inherit it. Under HR 278, corporations were given the flexibility to issue different categories of stock as they saw fit, and to set the rules as to how the stock might be voted and conveyed. Still, the amendments did not solve the problem completely, and Native corporations in Alaska are currently looking at the somewhat absurd spectacle of generations of Alaska Natives who may have no stock and no vested interest in the very corporations that were formed for their benefit.

Equally important, HR 278 extended protection for ANCSA land, granting it immunity from bankruptcy, civil judgments, liens, taxation, and the like, so long, in some cases, as the land remained undeveloped.

These amendments were welcomed by Alaska Natives, but I suspect such amendments are temporary at best. The lessons of history tell us that, at some point, both the State of Alaska and the federal government will move to eliminate any and all shelters, and force Native corporations into the marketplace. Corporations raise money in a variety of ways. They can issue and sell stock, they can adjust the price of their goods and services, and they can borrow against assets. Because ANCSA corporations are closed corporations—more or less—they can’t really sell stock on the open market, since such a move would allow Native corporations to be taken over by non-Native interests. The prices of goods and services are, in large part, dependent on the economy and market fluctuations, over which Native
corporations have little control. The easiest way to raise capital is to borrow against corporate assets using the land as collateral. It is also the most dangerous.

The eminent Canadian jurist Thomas Berger warned of such a scenario. In his book
Village Journey: The Report of the Alaska Native Review Commission
, Berger urged that the land held by village corporations be returned to tribal ownership. “My objective,” said Berger, “is to ensure that Native people do not lose their land. The only way to do that, the only way to ensure that Native land remains in Native ownership, is to re-tribalize the land. I do not see any alternative. As long as the land is a corporate asset, it will be vulnerable.”

The Alaska settlement is substantial. The economic potential of the land and resources, along with the profit-sharing agreements that have been negotiated among the Native regional corporations, should be able to provide a strong financial base for generations to come. Yet Berger isn’t the only one disturbed by this fee-simple business model. It makes me uneasy as well, makes me suspect that corporations are just the latest fashion in assimilation.